Karnataka High Court
Smt Meena vs Union Of India on 11 July, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:26811
WP No. 12788 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 12788 OF 2024 (GM-RES)
BETWEEN:
1. SMT MEENA
W/O VENKATARAJU,
AGED ABOUT 41 YEARS,
R/O SATHANUR,
KANAKAPURA,
RAMANAGAR,
KARNATAKA - 526 126.
2. SRI VENKATARAJU
S/O KONDURU GOPAL RAJU,
AGED ABOUT 56 YEARS,
R/O SATHANUR,
KANAKAPURA,
RAMANAGAR,
KARNATAKA - 526 126.
...PETITIONERS
Digitally
signed by (BY SRI. ABHIRAJ B CHENGTI.,ADVOCATE)
YAMUNA K L
Location: High AND:
Court of
Karnataka 1. UNION OF INDIA,
THROUGH MINISTRY OF HEALTH AND
FAMILY WELFARE, NIRMAN BHAVAN,
NEW DELHI - 110 011.
(THROUGH ITS SECRETARY).
2. THE DEPARTMENT OF LAW AND JUSTICE,
SHASTRI BHAVAN,
NEW DELHI - 11011.
(THROUGH ITS SECRETARY).
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NC: 2024:KHC:26811
WP No. 12788 of 2024
3. THE KARNATAKA STATE APPROPRIATE AUTHORITY,
ART(REGULATION) ACT 2021,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
AROGYA SOUDHA,
BENGALURU,
KARNATAKA - 560 023.
(THROUGH ITS MEMBER SECRETARY)
...RESPONDENTS
(BY SRI. KUMAR M N., CGSPC FOR R1 AND R2;
SRI. SUDEV HEGDE, AGA FOR R3;)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE SECTION
21(g)(ii) OF ART(REGULATIONS) ACT, 2021 DTD. 20.12.2021
BEARING NO. CG-DL-E-21122021-232025 ISSUED BY R-1 AND 2
PRODUCED AT ANNX-H IN SO FAR AS IT RELATES TO
DISQUALIFYING THE PETITIONERS FROM AVAILING IVF
TREATMENT AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this petition, petitioners are seeking for the following reliefs:
I. Issue Writ of Certiorari quashing the section 21(g)(ii) of ART (Regulations) Act, 2021 Dated 20.12.2021 bearing No.CG-DL-E-21122021- 232025 issued by Respondent No.1 and 2
produced at ANNEXURE H in so far as it relates to disqualifying the petitioners from availing IVF treatment.
II. Issue a Writ of mandamus or any other writ, order or direction to respondents to allow petitioners to go for IVF treatment.
III. Issue such other order/directions/relief as this Hon'ble court may deem fit to grant in the circumstances of the case.
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NC: 2024:KHC:26811 WP No. 12788 of 2024
2. Learned counsel for the petitioner submits that though the constitutional validity of Section 21(g)(ii) of the Assisted Reproductive Technology (Regulation) Act, 2021 is pending before the Apex Court, this Court in the case of Sri. H.Siddaraju and Another v/s Union of India and Others in WP.No.5861/2023 dated 21.04.2023 has directed respondents/authorities to consider the application filed by the petitioners for permission to undergo In Vitro Fertilization (IVF) for the purpose of bearing a child in terms of the aforesaid Act. The operative portion of the Siddaraju case is reads as under:
i) Writ Petition is allowed in part.
ii) The challenge to the provisions - Section 2 (1)(zg)
and Section 4 (iii)(e)(I) of the Surrogacy (Regulation) Act, 2021, at present, is not considered, as they would be subject to the pendency proceedings before the Apex Court.
iii) The petitioners are directed to approach the State Surrogacy Board/Appropriate Authority/Prescribed Authority with the appropriate application seeking redressal of their grievance.
iv) In the event petitioners would approach the Board/Appropriate Authority within 4 weeks from the date of receipt of the copy of this order, the State Surrogacy Board/Appropriate Authority/Prescribed Authority shall consider the application and pass appropriate orders for issuance of eligibility certificate within 4 weeks thereafter. While doing so, the Board/Authority shall bear in mind the observations made in the course of the order.
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NC: 2024:KHC:26811 WP No. 12788 of 2024
3. It is submitted that though the petitioner No.2 is aged 56 years which is beyond the upper age limit prescribed under the aforesaid ART (Regulation) Act of 2021, in light of the judgment in Siddaraju's case, necessary permission may be granted in favour of the petitioner to undergo IVF treatment for the purpose of bearing and giving birth to a child by petitioner No.1/wife. It is submitted that both the children of petitioner Nos.1 and 2 / wife and husband have expired, and as such, it is absolutely essential that the petitioner be permitted to bear a child and having regard to the advancing age of the petitioners, it is necessary that permission be granted.
4. Per contra, Sri. Sudev Hegde., learned Additional Government Advocate for respondent No.3 and Sri. Kumar M.N., learned Senior counsel for Central Government-CGSPC for respondent Nos.1 and 2, submits that there is no merit to the petition, the same is liable to be dismissed, and submits that the challenge to the constitutional validity is pending in the Apex Court in W.P.(C).No.134/2024.
5. Perusal of the material on record would indicate that it is an undisputed fact that petitioner No.1 is the wife of petitioner -5- NC: 2024:KHC:26811 WP No. 12788 of 2024 No.2 and both their children have expired. It is also seen from the medical records produced by the petitioner that, having regard to the advancing age of the petitioners, in particular the petitioner No.2, it is not possible to have ovarian activity, and petitioner No.1 cannot conceive on her own with her own eggs as she has ovarian failure and would need donor eggs for conception. Though the constitutional validity of Section 21(g)(ii) is pending before the Apex Court, in the peculiar / special facts and circumstances of the instant case and by making it clear that this order shall not be treated as a precedent nor will it have any precedential value for any purpose whatsoever and by adopting a humanitarian and justice oriented approach, I deem it just and appropriate to permit the petitioners to undergo IVF treatment for the purpose of bearing a child subject to other requirements in accordance with law.
ORDER I. As a result, the petition is hereby disposed of. II. The challenge to the constitutional validity of 21(g)(ii) of the ART (Regulation) Act 2021 would be subject to the final outcome of the matter pending before the Apex Court.
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NC: 2024:KHC:26811 WP No. 12788 of 2024 III. In the special / peculiar facts and circumstances of the instant case, including the medical certificate, which indicates that petitioner No.1 is not in a position to conceive on her own since she has ovarian failure and she would need donor eggs for conception due to a lack of ovarian activity, I deem it just and appropriate to permit the petitioners to undergo IVF treatment in a hospital of their choice, and the same shall be in accordance with law.
IV. It is made clear that the present order is passed in light of the special / peculiar facts and circumstances of the instant case, and this order shall not be treated as precedent nor shall it have any precedential value for any purpose whatsoever.
Sd/-
JUDGE AM/List No.: 1 Sl No.: 6